Client Update: April 2022

April 2022

Client Update

Table Of Contents 03

10

Firm Victories

Safe Workplace

06

12

Labor Relations

First Amendment Retaliation

08

14

Public Records Act

Consortium Call Of The Month

09

16

Did You Know...?

On The Blog

Contributors: Cynthia O’Neill Partner | San Francisco Kaylee Feick Associate | Los Angeles

Brian Dierzé Associate | Los Angeles Alison Kalinski Associate | Los Angeles

Connect With Us! @lcwlegal Copyright © 2022 Requests for permission to reproduce all or part of this publication should be addressed to Cynthia Weldon, Director of Marketing and Training at 310.981.2000.

Client Update is published monthly for the benefit of the clients of Liebert Cassidy Whitmore. The information in Client Update should not be acted on without professional advice. To contact us, please call 310.981.2000, 415.512.3000, 559.256.7800, 916.584.7000 or 619.481.5900 or e-mail info@lcwlegal.com.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

Hearing Officer Upholds Termination Of Peace Officer Who Threatened Violence Against Coworkers.

LCW Partner Jennifer Rosner and Associate Ashley Sykora recently prevailed in a peace officer termination appeal. The case concerned a male corporal who had an on-and-off affair with a female corporal while they were off-duty for approximately 10 years. The relationship had been volatile for years.

The female corporal complained about the male corporal after he began threatening violence against her and another deputy in the department. The male corporal appeared to believe the female corporal was having an intimate relationship with the deputy.

The male corporal was charged with violation of the department’s policy against harassment and workplace violence, as well as conduct unbecoming of an officer.

The male corporal argued that his discipline was disparate treatment because the female corporal also harassed him and used derogatory and profane language in their communications, but only he was being disciplined. He also maintained that his vulgar statements were merely “hyperbole,” and not actual threats.

The hearing officer found that the corporal’s conduct clearly constituted threats and violated numerous department policies, including those prohibiting harassment and workplace violence. The hearing officer stated that “Even if it is unlikely that the Appellant [the male corporal] intended to carry out the threats…such threats constitute totally unacceptable conduct, for which discharge has been recognized as an appropriate penalty.” The hearing officer also found that the male corporal did not submit any evidence

April 2022

firm victories

that the department treated him disparately. Based on these findings, the hearing officer sustained the termination.

Note: The hearing officer noted that even if disparate treatment had been found it would not have been a reason to deny the termination, absent evidence that the present investigation was fabricated, falsified, or otherwise tainted by grave deficiencies.

LCW Wins Dismissal Of Suspended Peace Officer’s Appeal.

LCW Partner Suzanne Solomon and Senior Counsel Dave Urban won the dismissal of a suspended peace officer’s appeal from the denial of the officer’s writ petition.

In May 2019, Public Safety Officer David Meinhardt filed a petition for writ of administrative mandate, otherwise known as a writ petition. A writ petition is a tool that a person may use to request a court to review a decision of an administrative body, such as a City Council or Personnel Board. In this case, Officer Meinhardt wanted the trial court to overturn a 44-hour suspension the City of Sunnyvale Personnel Board decided to impose on him.

The trial court upheld the suspension and, on August 6, 2020, issued an order denying Officer Meinhardt’s writ petition. This order was served on all parties. On August 14, 2020, Officer Meinhardt was served with the “Notice of Entry of Judgement or Order.” Finally, on September 17, 2020, the trial court signed its final judgment. It is from this September 17 judgment that Officer Meinhardt filed his appeal on October 15, 2020.

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California Rules of Court at Rule 8.104(a)(1)(A) and (B) says that appeals of writ petitions must be filed within 60 days of the date that either the Notice of Entry, or a file-endorsed copy of the judgment, is served on the party seeking to appeal. The Court of Appeal found in its published opinion that the August 6, 2020 order, which was served on all parties, was a final appealable judgment. Based on the August 6 date, the last possible date for Officer Meinhardt to timely appeal was October 5, 2020, 10 days before Officer Meinhardt filed his Notice of Appeal.

The California Court of Appeal further found that the August 14, 2020 service of the Notice of Entry of Judgment triggered a new 60-day timeline for filing a notice of appeal based on California Rules of Court at Rule 8.104(a)(1) (B). Sixty days from August 14, 2020 was October 13, 2020, two full days before Officer Meinhardt filed his appeal.

Even under the later of the two dates, Officer Meinhardt’s appeal was untimely and thus barred.

Meinhardt v. City of Sunnyvale (Sunnyvale Department of Public Safety), 2022 WL 702912.

Note: In the Court of Appeal’s own words, this decision reiterates “the critical importance of determining whether a ruling on a petition for writ of mandate is a final judgment.” LCW attorneys can help public agencies make these determinations and ensure timely compliance with legal deadlines.

Upcoming Webinar!

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

April 2022

To LCW! We are pleased to announce that James E. “Jeb” Brown and Matt Doyle have joined our team!

Jeb Brown has joined our Los Angeles office as Senior Counsel, effective January 3, 2022.

Jeb, a Riverside, Calif. native, most recently served as Riverside County’s Chief Assistant County Counsel where he supervised more than 30 attorneys representing multiple County departments —including the Probation, Fire and Sheriff ’s Departments.

“We are elated that Jeb is joining LCW. His expertise in litigation and extensive background counseling public safety agencies mesh particularly well with our firm’s long-standing history serving public agencies—including cities, counties and law enforcement agencies,” said LCW Managing Partner J. Scott Tiedemann. “Collectively, we are all excited to welcome Jeb to the firm and look forward to great collaboration and the continued service of these important clients.”

Matt Doyle has joined our Los Angeles office as Senior Consultant, effective March 16, 2022. Matt most recently served as the City of Glendale’s Director of Human Resources where he oversaw a comprehensive human resources operation consisting of labor and employee relations, recruitment and selection, classification and compensation, benefits, training, health services and workers’ compensation.

“Matt’s extensive public sector experience make him an ideal fit for LCW. We are thrilled that Matt is joining us and are all excited to welcome him to the firm,” said LCW Managing Partner J. Scott Tiedemann. “We look forward to his contributions to our Labor Relations and Management Training practices and know that his experience in all facets of public sector Human Resources Management will be a huge benefit to our clients across the state.”

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s r n o o i b t a l ela r

A Voter-Approved Salary Setting And Impasse Resolution Ordinance Was Unlawful.

In 1988, the voters in the City of Pacifica (City) approved Measure F, an ordinance entitled “Firefighter Dispute Resolution Process Impasse Resolution Procedures: Minimum Wages and Benefits for Firefighters.” Measure F lays out the procedures to follow if labor negotiations with the City’s firefighters are at impasse. The MeyersMilias-Brown Act (MMBA) also includes procedures for resolving labor relations impasses between local government employers and their employees. Measure F differed from the MMBA’s impasse procedures. For example, Measure F did not require the factfinding board to weigh the factors the MMBA requires, including the interests and welfare of the public and the financial ability of the public agency. In addition, section 3(a) of Measure F required, absent an agreement otherwise, that the top step salaries of fire captains were to be fixed retroactively to July 1 of each fiscal year at an amount not less than the average for the top step salaries of fire captains in five neighboring cities. Measure F also required the salaries of Firefighter-Engineers to be increased proportionately.

The City had never used the procedures of Measure F to set compensation.

In 2019, an impasse in negotiations occurred between the City and the Pacifica Firefighters Association (PFFA).

PFFA then petitioned the court to require the City to follow Measure F. The trial court denied the petition, finding that Measure F was preempted by state law and constituted an unlawful delegation of power. The California Court of Appeal affirmed.

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The Court first determined section 3(a) of Measure F unlawfully delegated the Pacifica City Council’s power to set compensation to the voters. As a general law city, Pacifica must follow Government Code Section 36506, which provides, “By resolution or ordinance, the city council shall fix the compensation of all appointive officers and employees.” Section 3(a), however, unlawfully delegated the City’s mandatory duty to set salaries to the voters.

Next, the Court determined that Measure F undermined the City’s authority under the MMBA at Government Code Section 3505.7 to unilaterally impose its last, best, and final offer if negotiations and impasse procedures failed. While Section 3505.7 does not require a public employer to unilaterally impose, it gives a public employer the right to do so. Section 3505.7 thereby preserves the public employer’s discretion to determine the ultimate outcome of the negotiations. Measure F’s provisions conflict with Section 3505.7 by limiting that discretion.

The Court concluded that the MMBA preempts Measure F and therefore the City was entitled to implement its last, best, and final offer in the event of impasse.

Pacifica Firefighters Association v. City of Pacifica, 2022 WL 871260.

Note: The fact that Pacifica is a general law city was a critical factor in the Court’s decision. While a general law city must follow the Government Code’s requirements, a charter city has authority to govern itself as to municipal affairs. A city charter could, for example, expressly give voters the right to set salaries of city employees. The Court found that a general law city like Pacifica, conversely, had to follow the Government Code and thus lacked any authority to delegate salary setting to the electorate.

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

April 2022

Did you miss the 2022 LCW Conference?

Don't worry - we've got you covered!

We're thrilled to announce that registration is now open for the Virtual Employment Law Seminar taking place on April 27, 2022.

Don't miss out on a sampling of 2022 LCW Conference sessions presented live in a virtual format; they will also be available on-demand! Attendees will have full access to 12+ sessions through May 28 to watch at their leisure.

• • • •

Sessions include: A Legal Tune Up to Get, and Stay, in Peak Legal Shape Managing a Remote or Hybrid Workforce Navigating Key Labor Relations Topics in Bargaining The Impact of Diversity, Equity and Inclusion Efforts on Employment Litigation

Register Today!

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public records Act

A Trial Court Has Discretion To Deny Attorney’s Fees Under The Public Records Act. In the summer of 2017, Adrian Riskin submitted three California Public Records Act (CPRA) requests to the Downtown Los Angeles Property Owners Association. Ruskin requested copies of three categories of documents.

The Association would not agree to give Riskin all the documents he wanted, so Riskin petitioned the trial court to compel the Association to produce certain records.

The trial court ordered disclosure of part of a five -page document but otherwise denied Riskin the declaratory relief he wanted. Because Riskin won disclosure of part of a document, Riskin moved for an award of attorney’s fees and costs.

Riskin relied on Government Code Section 6259(d), which states that “The court shall award court costs and reasonable attorney’s fees to the requester should the requester prevail in litigation filed pursuant to [the CPRA].” The trial court interpreted the “shall award” language in this provision to mean that it must award attorney’s fees and costs if a requester prevails in litigation.

The Court of Appeal first found that a person prevails in a CPRA case if the litigation results in a defendant-agency releasing a copy of a document it previously withheld. That is, the lawsuit must motivate the defendant-agency to produce the document(s).

The Court of Appeal also adopted the “minimal or insignificant” standard, and held that it applies if the requester obtains only partial relief under the CPRA. The Court of Appeal held that the trial court has discretion to decide whether a document’s disclosure is so minimal or insignificant to justify a finding that the requester did not actually prevail. The Court of Appeal remanded the case back to the trial court so that the trial court could use its discretion to determine whether this partial-document disclosure was minimal or insignificant.

Riskin v. Downtown Los Angeles Property Owners Association, 2022 WL 805377.

Note: This case gives public agencies the “minimal or insignificant” defense to a motion for fees and costs in CPRA cases if the requestor wins only partial relief. LCW attorneys can both help public agencies comply with the CPRA to avoid litigation, and to use this defense to reduce or eliminate CPRA fee and cost awards.

The Association appealed the award of fees and costs. On appeal, the Court of Appeal considered two issues: (1) what does the word “prevail” mean in the CPRA context; and (2) whether the “minimal or insignificant” standard applies to this situation.

The “minimal or insignificant” standard is a relatively new, court-created doctrine. Courts have ruled that if a requester “prevailed” by winning disclosure of documents, but the document(s) that were disclosed were so minimal or insignificant as to justify a finding that the requester did not actually prevail, the requester is not entitled to fees and costs.

This has become known as the “minimal or insignificant” standard.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

April 2022

Upcoming Webinar!

Peace Officer Personnel Records Management April 14, 2022 10am - 12pm Click here to register.

Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• California law prohibits employers from relying on salary history information of an applicant as a factor in determining: 1) whether to offer employment to an applicant; or 2) what salary to pay an applicant. (Labor Code Section 432.3.)

• After March 11, 2022, the California Department of Public Health (CDPH) no longer requires the use of face coverings in K-12 and childcare settings.

• California’s $15 minimum wage law now applies to employers with 26 or more employees. However, in 2023 the law will apply to all employers regardless of size. Beyond 2023, the minimum wage rate will be adjusted annually for inflation based on the national consumer price index for urban wage earners and clerical workers. The minimum wage will never see a drop, but will not increase more than 3.5%.

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safe workplace Duty To Provide Safe Workplace Did Not Apply At Conduct At Off-Site, Private Residence.

In March 2017, three employees of Colonial Van & Storage (Colonial) and a business associate gathered at the private family residence of two married Colonial employees (Carol Holladay and Jim Willcoxson). While in the home, Holladay and Willcoxon’s son, a war veteran with PTSD, opened fire with a handgun, killing Wilcoxson and injuring the remaining attendees.

The injured employee (Dominguez) and injured business associate (Schindler) filed lawsuits against Colonial for personal injury damages via a negligence cause of action.

Colonial moved for summary judgment against the negligence claim because Colonial did not own, possess, or control the home where the shooting occurred. The trial court denied this summary judgment motion. Colonial appealed, and the California Court of Appeal overturned the trial court and granted summary judgment. The trial court held that Colonial had no duty to ensure that an off-site meeting place for coworkers and business associates -- like an employee’s private residence -- is safe from third-party criminal conduct.

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In a typical negligence claim, a person must prove that they were owed a duty of care; the person they are suing breached that duty of care; and that the breach directly and proximately caused harm to the person suing.

This case focused on whether the employer, Colonial, owed a duty of care to the injured people.

California Labor Code Section 6400 gives an employer an affirmative duty to provide employees with a safe place to work. On the other hand, the Court of Appeal noted that a duty of care is not absolute. Generally, a person does not owe a duty to: protect others from the conduct of a third person; or warn those who may be endangered by third-party conduct. It is these competing principles that the Court of Appeal needed to balance and harmonize to decide this case.

The injured employee, Dominguez, and the injured business associate, Schindler, claimed that Colonial owed them a duty of care because Colonial controlled the home where the shooting occurred. Generally, a person’s or entity’s control over property is sufficient to create that duty of care. However, the Court of Appeal held that Colonial did not control the home in this case.

In reaching that determination, the Court of Appeal used a common legal definition of “control”, which is the power to prevent, remedy, or guard against a dangerous condition.

Absent ownership or possession, an entity can control a property in the legal sense if it takes an overt action directed at the property to modify or improve it, beyond simple upkeep.

Examples of overt actions include: building a fence around the property; or erecting a neon sign to illuminate it. The Court of Appeal found no evidence that Colonial had ever taken an overt action to modify or improve the property. Thus, Colonial did not control the property and could not possibly owe Dominguez and Schindler a duty of care.

Dominguez and Schindler also argued that because Holladay had often teleworked from the home on behalf of Colonial, Colonial controlled the home. The Court of Appeal disagreed, holding that deriving a commercial benefit from the use of a home does not create a duty to protect. In coming to this conclusion, the Court stated that if they sided with Dominguez and Schindler, “employers would have the onerous task of ensuring … employees maintained the safety of their private residences and the mental health of their fellow residents and invitees.”

The Court also found that, because Colonial had no knowledge of the son’s violent past and mental disorder, the son’s eventual attack was entirely unforeseeable. So, not only did Colonial not owe Dominguez and Schindler a duty of care, but the attack was also unforeseeable, which further rendered the claim untenable.

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April 2022

In sum, this case makes it clear that so long as an employer does not own, possess, or take overt action directed towards a property to modify or improve it, an employer does not control such property, and therefore does not owe a duty of care to those present on the property. Further, if an employer has no knowledge of anything that would hint at a future liability or dangerous situation, then the harm is not foreseeable and cannot support a negligence claim.

Colonial Van & Storage v. Superior Court (Dominguez), 2022 WL 819115.

Note: This case involved a private employer. The Governmental Tort Claims Act governs the liability of public agencies. To the extent that no specific governmental immunity applied, the principles in this case would also apply to public employers.

The LCW Labor Relations Certification Program is designed for labor relations and human resources professionals who work in public sector agencies. It is designed for both those new to the field as well as experienced practitioners seeking to hone their skills. Participants may take one or all of the classes, in any order. Take all of the classes to earn your certificate and receive 6 hours of HRCI credit per course!

Join our other upcoming HRCI Certified - Labor Relations Certification Program Workshops: 1. April 21 & 28, 2022 - PERB Academy 2. May 19 & 26, 2022 - Trends & Topics at the Table 3. June 16 & 23, 2022 - Bargaining Over Benefits

The use of this official seal confirms that this Activity has met HR Certification Institute’s® (HRCI®) criteria for recertification credit pre-approval.

INTERESTED?

Visit our website: www.lcwlegal.com/lrcp

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first amendment Qualified Immunity Insulated School Board From Paying Damages.

James Riley owns and operates Riley’s American Heritage Farms (Riley’s Farms), which provides historical reenactments and apple picking.

Schools within the Claremont Unified School District frequented Riley’s Farms for field trips for many years.

In 2018, Riley made several controversial Twitter posts to comment on a range of social and political topics. Certain parents discovered these posts and complained to the School Board. The School Board severed its business relationship with Riley’s Farms.

Thereafter, Riley’s Farms sued for retaliation and an injunction of the alleged School Board policy which prohibited district schools from contracting with Riley’s Farms for field trip services.

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The U.S. District Court granted summary judgment for the School Board, so Riley’s Farms appealed to the Ninth Circuit. Courts follow many steps to resolve cases that involve the First Amendment and other Constitutional rights. First, the Ninth Circuit had to analyze the retaliation claim. Second, it needed to decide whether the doctrine of qualified immunity shielded the School Board from liability for damages.

In analyzing the retaliation claim, the Ninth Circuit held that the Pickering v. Board of Education framework applied to the relationship between Riley’s Farm and the School Board.

The Pickering framework is a legal test that is traditionally used to analyze a government employee’s claim that the government employer has retaliated against the employee in violation of the employee’s First Amendment rights.

This framework has been extended to apply to claims of retaliation between the government and a government contractor. Courts have reasoned that government contractors who claim retaliation are in an equivalent position and standing as government employees. More recently, the Pickering framework has been even further extended to apply to the relationship between a government employer and a private company performing government services.

Because Riley’s Farms is a private company performing government services (field trip services for a public agency), the Ninth Circuit concluded that the Pickering framework applied.

The Pickering framework has two steps. First, the employee or private company performing government services must establish a prima facie case of retaliation. Then, the burden then shifts to the government to demonstrate either that: 1) its legitimate administrative interests in promoting efficient service-delivery

• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

April 2022

retaliation and avoiding workplace disruption outweigh the First Amendment interests; or 2) it would have taken the same actions in the absence of the First Amendment conduct.

The government is often able to demonstrate either of these options.

In this case, however, the Ninth Circuit held that the School Board did not meet its burden. After Riley’s Farms was able to show a prima facie case of retaliation, the School Board tried to show that Riley’s comments would create disruptions in the school workplace and school curriculum design. The School Board provided evidence of only two complaints from parents. In addition, two other facts let the Ninth Circuit to hold that the School Board had not met its burden: 1) no parents had threatened to remove their children from the school; and 2) Riley’s speech occurred on his personal time on his personal Twitter account.

Despite the Ninth Circuit’s finding that the School Board had unlawfully retaliated against Riley’s Farm, the Court also held that the School Board was entitled to qualified immunity. Qualified immunity shields public officials from liability unless the person suing can establish that there was a violation of a U.S. Constitutional right that was clearly established at the time of the officials’ misconduct.

In this instance, the Ninth Circuit held that, at the time of the School Board’s conduct, it was not clearly established that a school district could not cease patronizing a company providing historical reenactments and other events for students because the company’s principal shareholder had posted controversial tweets that led to parental complaints. As such, the School Board was entitled to qualified immunity.

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Thus, even though Riley’s Farms hurdled the Pickering framework and established that they were retaliated against in violation of its First Amendment, the doctrine of qualified immunity prevented the School Board from paying damages.

Riley’s Am. Heritage Farms, et al v.

Elsasser, and Claremont Unified School District et al, 2022 WL 804108.

Note: This case is an important reminder for public agencies that they cannot regulate an employee’s off duty time except in rare instances when there is a strong nexus between the on and off duty conduct. Public agencies should also be mindful that a government contractor or even a private company performing government services can have Free Speech rights in certain cases.

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Consortium Call Of The Month Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions. Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns to disability accommodations, labor relations issues and more. This feature describes an interesting consortium call and how the question was answered.

We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

April 2022

My agency just hired its 26th employee.

We believe this means that the 2022 Supplemental Paid Sick Leave (SPSL) law applies to us. If so, must we retroactively give our employees 2022 SPSL if they took time off at any point before we were covered under SPSL laws?

Question: You are correct that SPSL now applies to your agency. Per Labor Code Section 248.6(a)(3), SPSL applies to any employer who employs more than 25 employees, that is, 26 or more.

Answer:

SPSL provides eight different qualifying reasons for accessing paid leave for COVID-19 related absences. SPSL is retroactive to January 1, 2022. Therefore, if an employee in your agency took another form of paid leave to cover for a COVID-19 related absence that would have otherwise qualified for SPSL under one of the eight reasons at any point between January 1, 2022, and the date SPSL became applicable to your agency, then the SPSL appears to allow the employee to request that the other form of paid leave be credited back to her, and her appropriate SPSL bank be debited instead. Upon receipt of such a request, a newly-covered employer also appears to be obligated to retroactively apply SPSL back to January 1.

LCW attorneys are well versed in SPSL obligations and are happy to help public employers ensure compliance. For more information, please consult this special bulletin on the topic.

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On The Blog Masks May Come Off, But Is Remote Litigation Here To Stay?

By: Alison Kalinski After two years of the COVID-19 pandemic, things are looking optimistic in California. Covid case numbers and hospitalizations are declining and mask requirements are loosening. For many, myself included, this is great news and a much needed “return to normal.” At the same time, however, the pandemic brought some changes to our lives that we may not be ready to give up, including remote work. Many attorneys discovered they could easily work from home, and by eliminating a commute, they had time to exercise or spend time with their families, which has become invaluable. For myself, once my children returned to school in-person, I was able efficiently to work from home and found the time avoiding commuting made me happier. I had more time to devote to work, exercise, cooking, and my family.

During the pandemic, litigation adapted and went remote. In my October 2020 blog post, Litigating During a Pandemic, I discussed how litigation was adapting to the pandemic and how depositions, mediations, and court appearances were operating on a remote basis. Now that we are two years in to the pandemic and restrictions are easing, what has changed? Is litigation still remote? Are attorneys longing for in-person appearances?

For the most part, depositions, mediations, and court appearances have continued remotely. First, whether court appearances are remote depends largely on the court and judge, and for mediations and depositions, they depend on opposing counsel. For example, Los Angeles Superior Court has eliminated social distancing and restored in-person access without capacity limits in all Los Angeles County courthouses and courtrooms, but attorneys may appear remotely for all appearances. In the United States District Court for the Central District of California, in-person appearances are required unless the judge permits otherwise.

Second, many attorneys, including myself, have found remote depositions and mediations to work just as successfully as in-person appearances, and have additional advantages. Since the pandemic started, I have taken or defended about a dozen remote depositions. While at first, everyone was concerned about witnesses cheating – by having notes out of view, texting with someone, or having someone else present – I have not had those concerns arise in any deposition. Rather, we can ask the witness to pan the camera around the room and ask questions to confirm no notes or others are present. In addition, with the zoom pinned on the witness, I can focus on cross-examining the witness – alone in my office - just as I would sitting across the witness in a conference room. When defending a deposition, I felt just as comfortable objecting to questions by zoom and was able to check in with the witness by phone during breaks, just as I would if alone in a conference room.

Third, mediations have also continued to stay remote, largely for the same reasons as depositions. Mediations require the appearance of the parties, attorneys, and insurance representatives or other financial decision makers.

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• Los Angeles • San Francisco • Fresno • San Diego • Sacramento •

April 2022

Mediations typically last all day, sometimes well into the evening. However, usually there is a lot of downtime as the mediator is speaking with other side. When mediations are remote, you are free to go on mute and turn off your camera, and turn to other work or activities. When the mediator is ready, they will notify the attorney and everyone will come back. Remote mediations allow everyone to have more control over their time – whether that is spent doing other work, making phone calls, or walking the dog during the break. Also, all-day in person mediations can be very hard on the parties who have other pressing job duties – by allowing them to appear remotely it is easier on the parties and less burdensome to schedule. Also, it is a large cost-savings for parties and insurance carriers to avoid travel time.

I have participated in several mediations since the pandemic. While I had a few remote mediations that settled that same day well before dinner time, I also had a couple of remote mediations that did not reach an agreement by the end of the day, which sometimes occurs even when mediations are in-person. Those cases eventually settled within weeks or months after the mediation thanks to continued involvement of the mediator. However, perhaps those cases could have resolved sooner in an in-person mediation, but it is hard to know. While zoom mediations are certainly convenient, for some cases, having everyone in a room physically can increase the commitment and engagement and lead to a settlement sooner than later. It is important to understand the nature of the case, the personalities of the attorneys and parties, and preferences of the mediator, to evaluate whether to have a remote or in-person mediation.

In searching for a mediator recently, the majority of mediators we contacted were only offering zoom mediations.

Finally, remote depositions and mediations offer other advantages. They are easier to schedule – no one has to travel for the appearance, which also saves costs. Being in your own office also has advantages. If you need additional documents, for example, they are easily accessible. Also, it is important to be mindful that even if you are comfortable being with others in a small room (masked or unmasked), others may not be quite ready for that environment or be at high risk for Covid and desire additional precautions.

While being on zoom for 8 hours a day in a deposition or mediation can be tiring, the flexibility for witnesses in scheduling, cost savings, and equal effectiveness of the deposition will make zoom depositions and mediations commonplace even if pandemic restrictions recede.

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